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The Calling of Criminal Defense

10/25/12

The Calling of Criminal Defense

This came to me through my state defense association about a week ago, posted on Dropbox. It is now on the side bar:

The Calling of Criminal Defense, excerpt from Abbe Smith & William Montross, The Calling of Criminal Defense, 50 Mercer L. Rev. 443 (1999). The last two paragraphs:

Whether out of institutional role or a desire to be near a person who stands alone, the defense attorney is often the only companion the defendant has. When a defense lawyer stands next to a client, he or she engages in more than advocacy on the client's behalf--the defense lawyer engages in a kind of ministry to the client.

Being a defense attorney is more than cross-examining a witness, arguing before a judge or jury, or winning and losing. It is about being there when there is nothing left to do and the full power of the system is about to come down on a client and family, friends, and community are nowhere to be found. The virtuous defense attorney is the companion to even the worst wrongdoer. Compared to other acts of devotion, this is a simple act of grace.

"I simply want to tell you that there are some men in this world who were
born to do our unpleasant jobs for us. Your father is one of them."
—Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)

"The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that
the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)

"The right to the effective assistance of counsel is thus the right of the
accused to require the prosecution's case to survive the crucible of meaningful
adversarial testing. When a true adversarial criminal trial has been conducted
... the kind of testing envisioned by the Sixth Amendment has occurred. But
if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)

"The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
—Clarence Darrow

"America was neither founded, nor freed, by the well-behaved."
—Semmes Luckett the younger

"The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to
present the defendant's version of the facts as well as the prosecution's to
the jury so it may decide where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)

"[O]ur so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the
truth. Our system assigns him a different mission. He must be and is interested
in preventing the conviction of the innocent, but, absent a voluntary plea of
guilty, we also insist that he defend his client whether he is innocent or guilty.
... [A]s part of our modified adversary system and as part of the duty imposed
on the most honorable defense counsel, we countenance or require conduct which
in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

We, as criminal defense lawyers, are forced to deal with some of the lowest
people on earth, people who have no sense of right and wrong, people who will
lie in court to get what they want, people who do not care who gets hurt in
the process. It is our job–our sworn duty–as criminal defense lawyers,
to protect our clients from those people.
—Cynthia Roseberry